Lindara Mudiyanselage (Migration) [2024] AATA 2785 (25 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr Upali Premathilake Lindara Mudiyanselage
VISA APPLICANT: Miss Anjali Umeshika Lindara Mudiyanselage
REPRESENTATIVE: Mrs Dishni Yasamana (MARN: 1575517)
CASE NUMBER: 1930221
HOME AFFAIRS REFERENCE(S): OSF2018/008404
MEMBER:James Lambie
DATE:25 July 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.
Statement made on 25 July 2024 at 12:21pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – false or misleading information – full-time course of study – education transcripts – verification by recognition bodies – compassionate or compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65, 359
Migration Regulations 1994, Schedule 2, cls 101.213, 101.223; Schedule 4, Public Interest Criteria 4020; r 1.03CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 August 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 27 June 2018. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 101.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she did not meet the criteria of Public Interest Criteria 4020 in that she had provided false or misleading information in respect of her full-time study program.
The review applicant (Mr Upali) appeared before the Tribunal on 31 May 2024 and 5 July 2024 to give evidence and present arguments.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 101.223 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa…
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CaseChat Overview and Summary
The Tribunal was required to determine whether the applicant had provided a bogus document or false or misleading information in relation to the visa application, as prohibited by PIC 4020(1). Additionally, the Tribunal considered whether the applicant had a history of visa refusals due to a failure to satisfy PIC 4020(1) or identity requirements under PIC 4020(2A) and (2B). The Tribunal also had to consider whether any compelling or compassionate circumstances existed that would justify a waiver of the requirements under PIC 4020(4), noting that such waivers do not apply to identity criteria.
The Tribunal reasoned that the applicant did not satisfy PIC 4020. This conclusion was based on the evidence presented, which indicated that the applicant had provided false or misleading information. The Tribunal noted that the definition of a "bogus document" under section 5(1) of the Migration Act 1958 includes documents obtained due to a false or misleading statement, irrespective of whether that statement was relevant to a visa criterion. Furthermore, the Tribunal found that the applicant also failed to meet the criteria under subclause 101.213(1)(c).
Consequently, the Tribunal affirmed the decision not to grant the applicant the Child (Migrant) (Class AH) visa.
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